[1] Whether Article 6 (1) 3 of the Restitution of Development Gains Act applies to cases where an agreement on the succession of development gains and development charges between the parties to the succession of the development project is impossible (negative)

[2] The case holding that the successful bidder does not fall under the "person who succeeded to the status of the project operator liable for the payment of development charges" in case where the person who was knocked on the land whose business was not completed due to the bankruptcy of the project operator in the course of development

[1] Article 6 (1) 3 of the Restitution of Development Gains Act provides that the person who succeeds to the status of a project operator prior to completion of the development project shall be liable to pay the development charges. In principle, this provision shall impose the development charges on the person to whom the development gains actually accrue. However, if the development projects are succeeded, it is not easy to take into consideration the development gains accrued until the succession and the development gains accrued after the succession. It is based on the premise that an agreement on the succession of the development gains and the development charges can be reached between the parties to the succession of the development project. Thus, this provision does not apply even if such agreement is impossible.

[2] The case holding that the successful bidder does not constitute the "person who succeeds to the status of the project operator liable for the payment of the development charges" in case where the person who was knocked on the land whose business was not completed due to the bankruptcy of the project operator in the course of the development

[1] Article 6 (1) 3 of the Restitution of Development Gains Act / [2] Article 6 (1) 3 and Article 9 (3) 3 of the Restitution of Development Gains Act, Article 8 (3) 2 of the Enforcement Decree of the Restitution of Development Gains Act

Plaintiff (Law Firm Squa, Attorneys Park Young-chul et al., Counsel for the plaintiff-appellant)

Gwangju Market

Seoul High Court Decision 99Nu12498 delivered on March 22, 2000

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

The court below rejected the plaintiff's assertion that the purchase price should be calculated based on the plaintiff's initial purchase price as of July 15, 1996, on the ground that the non-party 1's business was completed on November 5, 1997 with permission for change of farmland conversion from the non-party 1 to the plaintiff's business area 2,636 square meters to 2,462 square meters after the auction procedure was commenced for the land subject to the farmland conversion permission on January 14, 1995, and that the non-party 1 calculated development charges based on the officially assessed individual land price of the land subject to the imposition at the time, and that the non-party 1's land price should be calculated based on the plaintiff's initial purchase price as of July 15, 1996, since the non-party 1's initial purchase price as of July 15, 1996.

Article 6 (1) 3 of the Restitution of Development Gains Act (hereinafter referred to as the "Act") provides that where the status of a project operator is succeeded before the completion of the development project, the person who succeeds to the status of the project operator shall be liable to pay the development charges. This provision, in principle, shall impose the development charges on the person to whom the development gains actually accrue, but it is not easy to take into account the development gains accrued until the time of succession and the development gains accrued after the succession, if the development projects are succeeded to, and it is based on the premise that the agreement on the succession of the development gains and the development charges between the parties to the development project can be concluded. Thus, this provision shall not

In addition, under Article 9(3)3 of the Act and Article 8(3)2 of the Enforcement Decree of the Act, where the implementation of a development project is suspended after the commencement of the development project and the completion of the project becomes impossible due to bankruptcy of the project implementer or any other reason, the date of completion of imposition shall be deemed the date of completion of imposition. Thus, only where the development project by Nonparty 1 does not fall under such case and it is impossible to impose development charges on Nonparty 1, the Plaintiff is obligated to pay development charges on the development gains from the development project by Nonparty 1 as the successor to the status of the project implementer. This is also the same even if the Plaintiff obtained a simple change of farmland use permission, instead of taking the procedure for cancellation of the permission for diversion of farmland granted by Nonparty 1, which

Nevertheless, without examining these points, the judgment of the court below which concluded that the plaintiff should bear the development charges for the development gains from the non-party 1's business as a person who succeeded to the non-party 1's development project, is erroneous in the misapprehension of legal principles as to the person liable for payment due to the succession to the status of the project operator

The part of the grounds of appeal assigning this error is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-sik (Presiding Justice)